Opening gambit on sentencing reform

By The Daily News

Published: Wednesday, August 14, 2013 at 08:17 PM.

As a broad philosophical statement on U.S. drug policy, Attorney General Eric Holder’s announcement Monday that he will direct federal prosecutors to scale back prison sentences for low-level and nonviolent drug offenders is welcome. It’s an official acknowledgment of the futility of at least one aspect of the “war on drugs” and the damage it has wreaked.

From a practical standpoint, though, it’s unclear just how much impact Holder’s actions will have.

In a speech to the American Bar Association, Holder said the nation’s “outsized, unnecessarily large prison population” means “too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason.” The focus on incarcerations should be to “punish, deter and rehabilitate — not merely to warehouse and forget.”

The costs of those incarcerations isn’t just measured in terms of dollars spent — $80 billion in 2010 alone, Holder noted — and also in “human and moral costs that are impossible to calculate.” He is spot-on.

The attorney general correctly points much of the blame at one-size-fits-all mandatory sentences that prohibit prosecutors, judges and juries from exercising discretion — from taking into account individual circumstances and making the punishment fit the crime.

Holder’s solution is to modify the federal sentencing guidelines to ensure crimes involving the possession of relatively small amounts of drugs don’t result in long prison sentences. He recommends that prosecutors decline to charge the quantity necessary to trigger a mandatory minimum sentence if the defendant meets certain criteria, such as being nonviolent, not selling to minors, not being affiliated with a gang or other criminal organization and not having a “significant” criminal history.

There are problems with this approach, though, starting with the fact it appears he is instructing prosecutors to withhold from courts evidence of the amount of drugs the defendant possessed. That’s basically an end-run around the law. It threatens to stretch prosecutorial discretion into disrespect.

As a broad philosophical statement on U.S. drug policy, Attorney General Eric Holder’s announcement Monday that he will direct federal prosecutors to scale back prison sentences for low-level and nonviolent drug offenders is welcome. It’s an official acknowledgment of the futility of at least one aspect of the “war on drugs” and the damage it has wreaked.

From a practical standpoint, though, it’s unclear just how much impact Holder’s actions will have.

In a speech to the American Bar Association, Holder said the nation’s “outsized, unnecessarily large prison population” means “too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason.” The focus on incarcerations should be to “punish, deter and rehabilitate — not merely to warehouse and forget.”

The costs of those incarcerations isn’t just measured in terms of dollars spent — $80 billion in 2010 alone, Holder noted — and also in “human and moral costs that are impossible to calculate.” He is spot-on.

The attorney general correctly points much of the blame at one-size-fits-all mandatory sentences that prohibit prosecutors, judges and juries from exercising discretion — from taking into account individual circumstances and making the punishment fit the crime.

Holder’s solution is to modify the federal sentencing guidelines to ensure crimes involving the possession of relatively small amounts of drugs don’t result in long prison sentences. He recommends that prosecutors decline to charge the quantity necessary to trigger a mandatory minimum sentence if the defendant meets certain criteria, such as being nonviolent, not selling to minors, not being affiliated with a gang or other criminal organization and not having a “significant” criminal history.

There are problems with this approach, though, starting with the fact it appears he is instructing prosecutors to withhold from courts evidence of the amount of drugs the defendant possessed. That’s basically an end-run around the law. It threatens to stretch prosecutorial discretion into disrespect.

The proper way to fix the system is to change the statutes — either by increasing the minimum amounts or, better yet, eliminating mandatory sentences. That’s how sentencing reform was achieved in various states, including such conservative domains as Texas and Arkansas. Currently, there is bipartisan support for such reform in Congress, with legislation co-sponsored by Republican Sens. Rand Paul of Kentucky and Mike Lee of Utah.

The guidelines themselves are sufficiently ambiguous as to question how many defendants will benefit. Syndicated columnist Jacob Sullum notes at Reason.com that “many marijuana dealers and pretty much all cocaine and heroin dealers” would be considered to have ties to criminal organizations, gangs or cartels. Plus, in some jurisdictions it wouldn’t take much to accumulate enough points to exceed Holder’s definition of a “significant” criminal history.

Still, Holder’s pronouncement represents much-needed support for a shift in federal policy and should begin further movement, at the federal and state levels, to reform sentencing guidelines and rethink prison policy.